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Southwest Ctr. for Biological Diversity v. Glickman

ELR Citation: 27 ELR 20186
Nos. CV 95-879, 932 F. Supp. 1189/(D. Ariz., 03/14/1996)

The court holds that a U.S. Forest Service proposed emergency salvage timber sale in the Coronado National Forest does not violate the 1995 Rescissions Act. Relying on a biological assessment and evaluation (BA&E), the Forest Service concluded that the proposed sale would have no effect on the Mexican spotted owl, and partly on that basis determined that the sale satisfied the criteria for a categorical exclusion from the requirement to conduct an environmental assessment (EA). The court first holds that the Secretary of Agriculture's failure to prepare a combined environmental and biological assessment (EA/BA) of the timber sale is not a per se violation of the Rescissions Act. To require an EA/BA for all salvage timber sales would defeat the Act's purpose of expediting the emergency sale of jeopardized salvage timber before the timber becomes economically worthless. The court next holds that plaintiff may not challenge the BA&E's methodology or its compliance with the Endangered Species Act (ESA). These challenges focus on the scope and content of the BA&E and the Rescissions Act provides that the scope and content of such documents are matters solely within the discretion of the Secretary. Moreover, the Rescissions Act expressly provides that documents such as the BA&E are expressly deemed to comply with the ESA. In addition, a thorough review of the administrative record reveals that the BA&E is fairly thorough and well reasoned and thus the Secretary did not abuse his discretion in relying on its no effect finding. The court then holds that the Secretary did not abuse his discretion in determining that the sale was categorically excluded from the requirement to prepare an EA. In light of the BA&E's conclusion that the sale would not affect the Mexican spotted owl, it was not arbitrary and capricious for the Secretary to conclude that the owl was not "present" so as to necessitate an EA. Last, the court grants the Forest Service's motion to strike documents that were not included in the administrative record.

Counsel for Plaintiff
Matthew G. Kenna
Kenna & Associates
1300 Meadow Rd., Durango CO 81301
(970) 385-6941

Counsel for Defendants
Eugene R. Bracamonte, U.S. Attorney
U.S. Attorney's Office
Acapulco Bldg.
110 S. Church Ave., Ste. 8310, Tucson AZ 85701
(602) 670-6511